CPR Archive for Robert Glicksman

How should a court assessing a regulatory takings claim define the "property" allegedly taken to assess the degree of the economic impact the regulation has on it? That question has plagued the Supreme Court for nearly a century, with different and conflicting answers emerging, sometimes in relatively rapid succession. In Murr v. Wisconsin,[1] the Court has provided its most comprehensive answer to the so-called "denominator" question so far, although even the analytical framework the Court provides leaves ample room for refinement in future cases.

Not until 1922 did the Supreme Court clearly establish that the Fifth Amendment's prohibition on the taking of property without just compensation (which applies to the states through the Fourteenth Amendment) applies to regulations as well as physical intrusions and compelled transfers of title. The case in which it did so provided its first opportunity to address the definitional question referred to above. In Pennsylvania Coal v. Mahon,[2] the Court held that a regulation amounts to a taking if it "goes too far" in terms of its economic impact on the regulated property. Justice Holmes, writing for the majority, held that a Pennsylvania statute restricting the mining of coal to prevent surface subsidence of residential and other properties amounted to a compensable taking because it made mining of the regulated tract by the coal company (which owned the mineral rights and the support
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Trump's Environmental Steamroller Bears Down on National Monuments

Donald Trump's antagonism toward environmental and natural resource protections seems to know no bounds, legal or otherwise. Among his latest targets are our national monuments, which include some of the most beautiful and historically, scientifically, culturally, and ecologically important tracts of federally owned lands. During the reign of destruction the president has unleashed in his first 100 days in office, his commitment to fossil fuel resource extraction and development regardless of the impact on our nation's natural resource heritage has
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No, They Don't, Mr. Pruitt

In his first speech upon assuming his duties as EPA Administrator, Scott Pruitt informed the agency's employees that "regulators exist to give certainty to those that they regulate." No, Mr. Pruitt, they do not. Regulators and the regulations they are responsible for adopting and enforcing exist to protect the public interest. In particular, they exist to correct market failures, such as the refusal of polluting industries to internalize the costs of the harm they do to public health and the
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Congress Wants Land Agency to Ignore the Facts and Future

Imagine you come across a colleague sitting at his desk amid piles of yellowed papers. When you ask what he is working on, he says it's his annual family budget. "What's with all the old papers?" you might ask. "Oh," he replies, "I always work my new budget off my receipts and bills from 1983, the year we married. Some of them are getting pretty hard to read." "Don't you keep updated records?" you might ask. "And haven't your family
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Ryan Zinke's Troubling Road to Interior Secretary

Rep. Ryan Zinke, a congressman from Montana and Donald Trump's pick for the next Secretary of the Interior, said some encouraging things in his Senate hearing on January 18. First, he acknowledged that the climate is changing and that "man has had an influence," disavowing Trump's notorious statement that climate change is a hoax. Second, he stated in strong terms his opposition to divestiture of the lands and resources owned by the federal government, declaring that "I am absolutely against
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Memo to the Next President: End the Era of Government Bashing

The most important lessons can be the hardest to learn. Sometimes they even take a crisis. We can hope that the sorry saga of Flint, Michigan's lead-poisoned water will be such a teachable moment for at least some of the anti-government crowd, finally driving home the point that government has a vital role in protecting health and safety, and that it can only play it if it takes the responsibility seriously and is provided the wherewithal to do its job
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Navigating the Clean Water Act

Originally published by the George Washington Law Review The Supreme Court held in U.S. Army Corps of Engineers v. Hawkes Co.[1] that a determination by the United States Army Corps of Engineers ("Corps") that the owners of land used for peat mining were obliged to apply to the Corps for a permit under the Clean Water Act ("CWA")[2] before dredging or filling the land was a judicially reviewable final agency action. Although this conclusion seems unremarkable, the case potentially packs
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Saving Endangered Species Requires a Systemic, Nationwide Approach

Yesterday, I joined four other witnesses in testifying about the Endangered Species Act (ESA) at a House Oversight and Government Reform subcommittee hearing. Most of the witnesses and House members who attended focused on a variety of complaints about the ESA's provisions governing listing and delisting of species and called for changes to the law and the ways in which it is administered. In doing so, they missed the larger point about efforts to save endangered and threatened species: we
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The Implications of Michigan v. EPA for Regulation of Hazardous Air Pollutants and Beyond

The following post is based on an article by Professor Glicksman on the George Washington Law Review website.[1] In Michigan v. Environmental Protection Agency,[2] Justice Scalia, for a 5-4 majority, held that the Environmental Protection Agency (EPA)’s failure to consider cost at the initial stage of deciding whether to regulate emissions of hazardous air pollutants from electric generating units (EGUs or power plants) under § 112 of the Clean Air Act (CAA), even though it gave ample consideration to cost at
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As climate scientists have been telling us for years, and as all but the most obstinate climate deniers acknowledge, greenhouse gas (GHG) emissions from the combustion of fossil fuels are contributing to climatic changes. These changes have taken the form of melting ice sheets, rising sea levels, changes in wind and ocean current patterns, and increases in the frequency of severe weather events, to name but a few effects. Rising temperatures linked to GHG emissions also exacerbate public health problems
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Enforcement and Regulatory Governance

Co-authored with David L. Markell. Enforcement is widely acknowledged to be an indispensable feature of effective governance in the world of environmental protection and elsewhere. Unfortunately, criticisms of the U.S. government’s efforts to enforce the environmental laws began almost with the inception of the Environmental Protection Agency (EPA) more than forty years ago – and they continue virtually unabated today. In a 2012 report, for example, the U.S. Government Accountability Office(GAO) noted that “EPA has reported that it is not achieving
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CPR Briefing Paper: Chesapeake Bay States Need to Strengthen Penalty Policies to Make Sure there is No Profit in Pollution

Industries that discharge water pollution are required to abide by clean water laws and regulations that limit how much they can pollute the nation's rivers, lakes, streams, and other bodies of water. If they exceed their limits or fail to implement appropriate methods for controlling their pollution, they violate the law. Such violations should trigger appropriate sanctions to deter all regulated entities from committing future violations. Unfortunately, polluters may weigh decisions about whether and how much to pollute from a dollars-and-cents perspective
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A Tribute to Joe Feller

Last week, CPR lost one its most dynamic scholars, Joe Feller, in a tragic accident. Joe was deservedly well known as a staunch and vigorous advocate on behalf of natural resource preservation, especially the public rangelands that he loved. Joe was not cut from the typical academic mold. Although he wrote frequently and with vision about subjects that included rangeland protection and water law issues, he was at least as comfortable leading environmental protection efforts in the agencies and the courts. Joe filed administrative
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National Energy Policies and the Environment: Can the National Environmental Policy Act Provide a Harmonizing Framework?

Energy policy in the United States is inextricably linked with questions of environmental protection. Thus, for example, the Obama administration will soon be called upon to decide whether to approve the Keystone XL pipeline, how much (and what kind) of regulation to impose on hydraulic fracturing for natural gas extraction, whether to regulate carbon emissions from existing coal-burning power plants, what proportion of federally owned lands should be devoted to mineral extraction, and whether to allow the expansion of oil
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A Bill to Steamroll the NEPA Process

The irony is palpable, though clearly intentional. More than forty years ago, Congress kicked off the “environmental decade” by adopting the National Environmental Policy Act (NEPA). NEPA’s goals are to ensure that federal agencies whose developmental missions often incline them to ignore or place a low priority on environmental protection to consider the possible adverse environmental consequences of major actions before committing to them, and to make the results of that evaluation publicly available. NEPA sought to assure balanced consideration
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EPA Steps Up to the Plate on Clean Water Act Enforcement. Congress Needs to Step Up, Too

Just about a month ago, the New York Times published a story in which it documented an alarming failure on the part of federal and state officials to enforce the principal federal law designed to protect the quality of the nation’s surface waters, including rivers, lakes, and streams. According to that story, fewer than three percent of identified violations of the Clean Water Act result in fines or other significant punishments by state officials. These violations have the potential to
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The Supreme Court's Decision on Standing in Summers vs. Earth Island Institute, Part Two

(CPR Member Scholar Robert L. Glicksman replies below to CPR Member Scholar William Buzbee’s post on the Summers vs. Earth Island Institute decision.) The decision in Summers represents the latest salvo in a continuing battle between those Supreme Court Justices who view the function of standing doctrine as ensuring that litigation before the federal courts is capable of being presented in an adversary context suitable for judicial resolution, and those who regard it as a fundamental bulwark against intrusion
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Revitalizing Cooperative Federalism by Limiting Federal Preemption of State law

As President-elect Obama and his transition team begin planning to implement the new Administration’s agenda, a flood of policy proposals can be expected to compete for the President-elect’s attention. Proposals to deal with the nation’s economic crisis surely deserve to top the agenda. This week, CPR issued Protecting Public Health and the Environment by the Stroke of a Presidential Pen: Seven Executive Orders for the President’s First 100 Days, urging President Obama to take steps early in his presidency to
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Also from Robert Glicksman

Robert L. Glicksman is the J. B. and Maurice C. Shapiro Professor of Environmental Law at the George Washington University Law School. He is a member of the board of directors of the Center for Progressive Reform.